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SB 51
 

SB 51

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    SB 51 SB 51 Document Transcript

    • UNOFFICIAL COPY AS OF 05/12/10 02 REG. SESS. 02 RS BR 1171 AN ACT relating to consumer protection. Be it enacted by the General Assembly of the Commonwealth of Kentucky: SECTION 1. KRS 367.46951 IS REPEALED AND REENACTED TO READ AS FOLLOWS: As used in KRS 367.46951 to 367.46999, unless the context otherwise requires: (1) "Automated calling equipment" means any device or combination of devices used to select or dial telephone numbers and to deliver recorded messages to those numbers without the use of a live operator. (2) "Caller" or "salesperson" means the individual making the call or operating the automated calling equipment and causing the call to be made. (3) "Caller identification service" means a type of telephone service which permits telephone subscribers to see the telephone number and name of the company or individual making the telephone solicitation. (4) "Consumer" means a residential telephone subscriber, or any other adult residing at that residence, who is an actual or a prospective: (a) Purchaser, lessee, or recipient of consumer goods or services; or (b) Donor to a charitable organization. (5) "Consumer goods or services" means: (a) Tangible or intangible personal or real property that is normally used for personal, family, or household purposes; (b) Property intended for attachment or installation on real property without regard to whether it is attached or installed; (c) Services related to property described in paragraph (a) or (b) of this subsection; or (d) Credit cards or the extension of credit. (6) "Consumer loan" means any extension of credit, including credit cards and other forms of revolving credit, to a natural person primarily for the purposes of Page 1 of 8 BR117100.100-1171
    • UNOFFICIAL COPY AS OF 05/12/10 02 REG. SESS. 02 RS BR 1171 purchasing consumer goods or services or for paying existing personal, family, or household debts. (7) "Division" means the Consumer Protection Division of the Office of the Attorney General. (8) "Doing business in Kentucky" means making telephone solicitations to consumers located in Kentucky whether the telephone solicitations are made from a location in or outside Kentucky. (9) "Legal name of the merchant" means the real name of the merchant, as defined in KRS 365.015, or the assumed name of the merchant for which all proper certificates have been filed under KRS 365.015. (10) "Merchant" means the individual or business entity offering the consumer: (a) Goods or services; (b) An investment; (c) Business or employment opportunity; (d) A consumer loan; or (e) A prize. (11) "No telephone solicitation calls list" means a list of the names and phone numbers of individuals who do not wish to receive telephone solicitations, as defined in subsection (14) of this section, but who may receive telephone calls identified in subsection (15) of this section. The Attorney General shall maintain the list. (12) "Telemarketer" means any person who, under contract with a merchant or in connection with a telephone solicitation, initiates or receives telephone calls to or from a consumer of goods or services. A telemarketer includes, but is not limited to, any person who is an owner, operator, officer, director, or partner to the management activities of a business. (13) "Telemarketing company" means a company whose primary business is to Page 2 of 8 BR117100.100-1171
    • UNOFFICIAL COPY AS OF 05/12/10 02 REG. SESS. 02 RS BR 1171 engage in telephone solicitation. (14) "Telephone solicitation" means a telephone call to a consumer for the purpose of: (a) Soliciting a sale or lease of consumer goods or services; (b) Soliciting a charitable contribution; or (c) Obtaining information that may be used for the direct solicitation of a sale or lease of consumer goods or services or an extension of credit for a sale or lease of consumer goods or services. "Telephone solicitation" includes a call made by use of automated calling equipment. (15) "Telephone solicitation" does not mean: (a) A telephone call made in response to an express request of the person called; (b) A telephone call made primarily in connection with an existing debt or contract for which payment or performance has not been completed at the time of the call; (c) A telephone call made by a real estate broker or sales associate properly licensed under KRS Chapter 324; (d) A telephone call made by an insurance agent, solicitor, or consultant properly licensed under the provisions of Subtitle 9 of KRS Chapter 304; (e) A telephone call made on behalf of a charitable organization that is exempt from federal taxation under Section 501(c) of the Internal Revenue Code if: 1. The telephone call is made by a volunteer or an employee of the charitable organization; and 2. The telephone call is made by a telephone solicitor who, upon making contact with the consumer, immediately discloses: a. The solicitor's true first and last names; and Page 3 of 8 BR117100.100-1171
    • UNOFFICIAL COPY AS OF 05/12/10 02 REG. SESS. 02 RS BR 1171 b. The name, address, and telephone number of the charitable organization. (16) "Zero call list" means a list of the names and phone numbers of individuals age sixty-five (65) or older who do not wish to receive telephone solicitations, as defined in subsection (14) of this section, or other telephone calls identified in subsection (15)(b), (c), (d), and (e) of this section, but who may receive telephone calls identified in subsection (15)(a) of this section. The Attorney General shall maintain the list. Section 2. KRS 367.46955 is amended to read as follows: It is a prohibited telephone solicitation act or practice and a violation of KRS 367.46951 to 367.46999 for any telemarketing company, telemarketer, or merchant to engage in the following conduct: (1) Advertising or representing that registration as a telemarketing company, telemarketer, or merchant equals an endorsement or approval by any government or governmental agency; (2) Requesting a fee in advance to remove derogatory information from or improve a person's credit history or credit record; (3) Requesting or receiving a payment in advance from a person to recover or otherwise aid in the return of money or any other item lost by the consumer in a prior telephone solicitation transaction; (4) Requesting or receiving payment of any fee or consideration in advance of obtaining a loan or other extension of credit when the telemarketing company has guaranteed or represented a high likelihood of success in obtaining or arranging a loan or other extension of credit for a person; (5) Obtaining or submitting for payment a check, draft, or other form of negotiable paper drawn on a person's checking, savings, or bond or other account without the consumer's express written authorization; Page 4 of 8 BR117100.100-1171
    • UNOFFICIAL COPY AS OF 05/12/10 02 REG. SESS. 02 RS BR 1171 (6) Procuring the services of any professional delivery, courier, or other pickup service to obtain immediate receipt or possession of a consumer's payment, unless the goods are delivered with the opportunity to inspect before any payment is collected; (7) Assisting, supporting, or providing substantial assistance to any telemarketer when the telemarketing company knew or should have known that the telemarketer was engaged in any act or practice prohibited under this section; (8)[ Making a telephone solicitation to anyone under eighteen (18) years of age. When making a telephone solicitation the telemarketer shall inquire as to whether the person is eighteen (18) years of age or older and the answer shall be presumed to be correct; (9)] Utilizing any method to block or otherwise circumvent the use of a caller identification service when placing an unsolicited telephone solicitation call; (9)[(10)] Directing or permitting employees to use a fictitious name or not to use their name while making a telephone solicitation; (10)[(11)] Threatening, intimidating, or using profane or obscene language; (11) Making a telephone solicitation to anyone under eighteen (18) years of age. When making a telephone solicitation, the telemarketer shall inquire as to whether the person is eighteen (18) years of age or older, and the answer shall be presumed to be correct; (12) Causing the telephone to ring more than thirty (30) seconds in an intended telephone solicitation; (13) Engaging any person repeatedly or continuously with behavior a reasonable person would deem to be annoying, abusive, or harassing; (14) Initiating a telephone solicitation call to a person, when that person has stated previously that he or she does not wish to receive solicitation calls from that seller; (15) (a) Making or causing to be made a[an unsolicited] telephone solicitation call if the consumer's name[number for that telephone] appears in the current Page 5 of 8 BR117100.100-1171
    • UNOFFICIAL COPY AS OF 05/12/10 02 REG. SESS. 02 RS BR 1171 publication of the ["]no telephone solicitation calls["] list[ maintained by]; or (b) Making or causing to be made a telephone solicitation call or other telephone call identified in subsection (15)(b), (c), (d), or (e) of Section 1 of this Act if the consumer's name appears in the current publication of the zero call list. The Office of the Attorney General, Division of Consumer Protection shall maintain the no telephone solicitation calls list and the zero call list. Any consumer under age sixty-five (65)[holder of a telephone number] may notify the division and be placed on the[a "]no telephone solicitation calls["] list[ indicating the wish not to receive unsolicited telephone solicitation calls by notification to the division]. Any consumer who is age sixty-five (65) or older may notify the division and be placed on the no telephone solicitation calls list or the zero call list. The name[names] and telephone number of a consumer[persons] requesting to be on the[ "]no telephone solicitation calls["] or the zero call list shall remain on that[the] list until the consumer's name and phone number are removed under Section 3 of this Act[person rescinds his or her name from the list]. The lists[list] shall be published quarterly in hard copy and may be made available in other formats at the discretion of the division. After the publication of the lists[list] each quarter,[month] each telemarketing company, telemarketer, and merchant shall be deemed to be on notice with regard to the contents of each[not to solicit any person whose name appears on the] list. The division shall charge a fee to telemarketing companies, telemarketers, and merchants calculated to defray costs of administering the zero call list and the no telephone solicitation calls list and providing the lists to telemarketing companies, telemarketers, and merchants[program to telemarketing companies for the provision of the list]. Funds collected shall be deposited into the division's trust and agency account. The lists[list] shall be made available to requesters either on a statewide or county by Page 6 of 8 BR117100.100-1171
    • UNOFFICIAL COPY AS OF 05/12/10 02 REG. SESS. 02 RS BR 1171 county basis; or (16) Engaging in telemarketing to a person's residence at any time other than between 10 a.m. - 9 p.m. local time, at the called person's location. SECTION 3. A NEW SECTION OF KRS 367.46951 TO 367.46999 IS CREATED TO READ AS FOLLOWS: Upon a consumer's request for placement on the no telephone solicitation calls list or the zero call list, the Attorney General shall place that consumer's name and telephone number on the list. The Attorney General shall not remove the consumer's name and telephone number from the list unless the consumer requests the removal in writing, or the Attorney General receives notice that the telephone number on the list is no longer in the consumer's name. SECTION 4. A NEW SECTION OF KRS 367.46951 TO 367.46999 IS CREATED TO READ AS FOLLOWS: (1) The Attorney General shall establish and provide for the operation of a database containing the zero call list and the no telephone solicitation calls list. The Attorney General, or another person under contract with the Attorney General, shall operate the database. (2) If the Federal Communications Commission, under 47 U.S.C. sec. 27(c)(3), establishes a national database with criteria substantially similar to the no telephone solicitation calls list database or the zero call list database, the Office of the Attorney General shall include in the appropriate Kentucky database the part of the national database that relates to Kentucky consumers. SECTION 5. KRS 367.46999 IS REPEALED AND REENACTED TO READ AS FOLLOWS: (1) (a) Any person who engages in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person in connection with a telephone solicitation shall be guilty of a Class D felony. Page 7 of 8 BR117100.100-1171
    • UNOFFICIAL COPY AS OF 05/12/10 02 REG. SESS. 02 RS BR 1171 (b) 1. Except as provided in subparagraph 2. of this paragraph, any person, including, but not limited to, a telemarketer; telephone solicitor, salesperson, agent, or representative of a telemarketer; or independent contractor, who knowingly violates any provision of KRS 367.46951 to 367.46999 shall be guilty of a Class D felony, except that any person who violates a provision of subsections (1) to (10) of Section 2 of this Act shall be guilty of a Class B misdemeanor for a first offense, a Class A misdemeanor for a second offense, and a Class D felony for a third or subsequent offense. 2. Notwithstanding the provisions of subparagraph 1. of this paragraph, no criminal penalties shall be assessed against any person who violates a provision of subsections (11) to (16) of Section 2 of this Act. (2) The Office of the Attorney General shall have concurrent enforcement powers as to these felonies and misdemeanors. Section 6. The no telephone solicitation calls list that takes effect on the effective date of this Act shall include the names of all individuals on the no telephone solicitation calls list that existed on the day before the effective date of this Act. Page 8 of 8 BR117100.100-1171